The MV Cape Courage, belonging to Qannas Shipping Co Ltd (first respondent), was arrested as an associated ship before being released upon the provision of a security guarantee (but still deemed arrested). The MV Pearl of Fujairah was owned by Dry Bulk Maritime Ltd (second respondent) prior to its transfer in terms of a contract of sale between the second respondent and Bulkship Union SA (appellant).

Article 3.1 of the International Convention for the Unification of Certain Rules relating to Arrest of Sea-Going Ships 1952 (Arrest Convention 1952), which uses the phrase ‘when the maritime claim arose’, was adopted by South Africa in s 11(4)(c) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (AJRA). There was a dispute involving the meaning of the word ‘arose’.

The trial judge held that none of the appellant’s claims arose when the second respondent owned MV Pearl of Fudairah, with the result that the deemed arrest had to be set aside, as the appellant had failed to establish the necessary association between the two vessels. The issue was whether the trial court correctly set aside the deemed arrest of the MV Cape Courage.

Held: The court allowed the appeal. In the circumstances, the judge agreed with the appellant’s interpretation of ‘when the maritime claim arose’.

It was the owner or controller of the offending ship which was personally liable on the claim and thus inappropriate to speak of the offending ship - it was really the offending owner (or controller) who should be looked at, because property owned or controlled by it, in the form of another ship, became liable for arrest when the associated ship provision was utilised.

It would accordingly make sense, when a claim had ‘originated’ and enough factors were present to indicate that the owner or controller of the ship concerned at that time (or those for whose actions or omissions it is liable) had ‘offended’, that another ship owned or controlled by that person when the claim was enforced might be arrested in respect of the claim. It would not be stretching the language to say that the claim has ‘arisen’ when damage resulting from the offending actions or omissions by the owner or controller (or for which it is liable) might not yet have been suffered, but if it was clear that it would, in due course, be suffered.

On associated ships, the AJRA goes further than the Arrest Convention 1952 by widening the net and providing for a statutory piercing of the veil to combat the practice frequently adopted by shipowners seeking to evade the sister ship provision by setting up a series of one ship companies. The required nexus was similarly worded to reflect the owner or ultimate controller of the ship sought to be arrested - the associated ship - as the owner or controller of the offending ship ‘when the maritime claim arose’.

In cases other than those involving maritime liens, where other considerations apply, it was significant that the owner of the property to be arrested must be liable in an action in personam to the claimant in respect of the cause of action concerned for a maritime claim to be enforced by an action in rem.